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New York State Department of Environmental Conservation (NYS DEC) filed a Notice of Amended Adoption with the New York State Department of State on June 25, 2010. This Notice will be published in the State Register on July 14, 2010. The effective date of this rulemaking is July 25, 2010.

This filing will correct the Department's Notice of Adoption filed on June 8, 2010, which was published in the State Register June 23, 2010.

Pursuant to Environmental Conservation Law, Sections 1-0101, 19-0103, 19-0105, 19-0301, 19-0303, 19-0305, and 19-0311 the New York State Department of Environmental Conservation hereby gives notice of the following:

Notice of Amended Adoption of Rules on June 22, 2010, filed with the New York State Department of State on June 25, 2010, to be effective July 25, 2010, to amend existing 6 NYCRR Part 200, General Provisions, 6 NYCRR Subpart 201-3, Exemptions and Trivial Activities, and 6 NYCRR Subpart 227-2 Reasonably Available Control Technology (RACT) For Oxides of Nitrogen (NOx).

Notice of Adoption

Pursuant to the provisions of Environmental Conservation Law, Section 72-0303(1), the New York State Department of Environmental Conservation (NYS DEC) hereby gives notice of the following:

Notice of Adoption of Rule: Pursuant to the provisions of Section 22 of the NYS Clean Air Compliance Act (ECL 72-0303), the 2010 operating permit program fee and fee calculation are hereby established as a rule by publication in the Environmental Notice Bulletin and filing with the New York State Department of State. The purpose of the rule is to establish the annual fee to be submitted by air contamination sources subject to the operating permit program for emissions of regulated air contaminants.

(a) Fee. Each person subject to fees under this Subpart must submit an annual fee to NYS DEC. This fee is based on the facility's total annual emissions as described in this Subpart 2.2. The fee per ton is assessed on emissions up to 7,000 tons annually of each regulated air contaminant. As of January 1, 2010, the fee per ton for 2010 is as follows:
(i) a fee of $45.00 per ton for facilities having total annual emissions less than 1,000 tons,
(ii) a fee of $50.00 per ton for facilities having total annual emissions of 1,000 tons or more but less than 2,000 tons,
(iii) a fee of $55.00 per ton for facilities having total annual emissions of 2,000 tons or more but less than 5,000 tons, and
(iv) a fee of $65.00 per ton for facilities having total annual emissions of 5,000 tons or more.

(b) Fee calculation.

1. NYS DEC pursuant to section 72-0303 of the Environmental Conservation Law is required to calculate a fee by dividing the current State fiscal year appropriation for the operating permit program by the total tons of emissions of regulated air contaminants from sources subject to the operating permit program during the preceding calendar year, with consideration given to any surplus or deficit in the operating permit program account of the clean air fund established pursuant to section 97-oo of the State Finance Law, any loan repayment from the mobile source account of the same clean air fund and the rate of collection of bills issued for the fee.

2. The amount of each factor used in the fee calculation by NYS DEC for the current year is hereby established as follows:

(i) the State fiscal year 2010-11 appropriation for the operating permit program is $18,311,600;

(ii) the total tons of emissions of regulated air contaminants from sources subject to the operating permit program are 164,023 tons;

(iii) as of March 31, 2010 the actual operating permit program account balance was negative $5,924,270. An additional estimated $586,275 will be required to liquidate obligations made pursuant to appropriations for fiscal years prior to 2010-11. The estimated deficit of $6,510,545 will be applied towards the appropriation for SFY 2010-11.

(iv) the loan repayment from the mobile source account of the clean air fund is zero since no loan was made;

(v) the collection rate of bills for the prior fiscal year is 98.64 percent.

4. However, as established in paragraph (a) of this section, the fee assessed for 2010 is as follows:
$45.00 per ton for facilities having total annual emissions less than 1,000 tons,
$50.00 per ton for facilities having total annual emissions of 1,000 tons or more but less than 2,000 tons,
$55.00 per ton for facilities having total annual emissions of 2,000 tons or more but less than 5,000 tons, and
$65.00 per ton for facilities having total annual emissions of 5,000 tons or more.

Notice: This is to notify persons subject to the operating permit program fee that pursuant to section 72-0201 of the Environmental Conservation Law, any person who fails to pay fees required pursuant to section 72-0303 of the Environmental Conservation Law shall pay a penalty of fifty percent of the unpaid fee amount plus interest on the unpaid fee amount computed in accordance with section 6621(a)(2) of the United States internal revenue code of 1986 (Public Law 99-514, 26 S. S. C. section 1 et seq.) from the date the fee was required to be paid.

Notice is hereby given that the New York State Department of Environmental Conservation (NYS DEC) has submitted a clean data petition to the United States Environmental Protection Agency (EPA) for the New York-N. New Jersey-Long Island, NY-NJ-CT metropolitan statistical area that was designated nonattainment for the 1997 national ambient air quality standard (NAAQS) for ozone.

On April 30, 2004, EPA promulgated designations for the 1997 ozone NAAQS (69 FR 23858). Air quality monitors in the New York State portion of the New York-N. New Jersey-Long Island, NY-NJ-CT metropolitan statistical area now monitor attainment of the NAAQS. Air quality monitors in the Connecticut and New Jersey portions of the New York-N. New Jersey-Long Island, NY, NJ, CT metropolitan statistical area also monitor attainment of the 1997 8-hour ozone standard. To attain this standard, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor (Design Value) within an area over each year must not exceed 0.08 ppm. Based on the rounding convention required by EPA (40 CFR 50 App. I), the Design Value must be less than 0.085 ppm in order to demonstrate attainment of the 1997 ozone NAAQS.

The following table contains complete, quality assured 2007-2009 8-hour ozone design values that are certified by NYS DEC as accurate:

New York 8-Hour Ozone Design Values - 2007-2009

Nonattainment Area - New York State portion:
New York- N. New Jersey-Long Island, NY, NJ, CT

Station

AIRS ID

4th Max
2007
(ppm)

4th Max
2008
(ppm)

4th Max
2009
(ppm)

Design
Value
(ppm)

Babylon

361030002

0.083

0.083

0.079

0.081

Holtsville

361030009

0.086

0.083

0.074

0.081

Riverhead

361030004

0.085

0.083

0.071

0.079

CCNY

360610135

0.084

0.082

0.064

0.076

NYBG Pfizer Lab

360050133

0.076

0.078

0.065

0.073

IS 52

360050110

0.076

0.077

0.063

0.072

Queens College 2

360810124

0.075

0.080

0.067

0.074

Susan Wagner

360850067

0.082

0.070

0.078

0.076

White Plains

361192004

0.094

0.082

0.075

0.083

NYS DEC has petitioned EPA to make a binding determination that the subject area has attained the 1997 ozone NAAQS and NYS DEC need not submit a state implementation plan (SIP) revision concerning reasonable further progress (RFP), attainment demonstrations and contingency measures. This petition is based on the May 5, 1995 EPA guidance memorandum entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard" located at www.epa.gov/ttn/caaa/t1/memoranda/clean15.pdf

NYS DEC acknowledges that the suppression of the requirement to submit SIP revisions for the aforementioned provisions is in effect only as long as the areas continue to monitor attainment of the NAAQS. New York will continue to operate its air quality monitoring network, and if an area experiences a violation of the NAAQS, the area would again be subject to a requirement to submit the pertinent SIP revision(s) and would need to address those requirements.

Furthermore, by attaining the 8-hour ozone NAAQS, NYS DEC meets the EPA criteria as set forth in EPA's January 5, 2010 "Guidance on Developing Fee Programs required by Clean Air Act Section 185 for the 1-hour Ozone NAAQS," and pursuant to EPA's criteria set forth in this guidance document, requests removal of New York State from the Section 185 fee program.

A 30-day public comment period is being provided. Written comments should be submitted by August 13, 2010 to: Robert D. Bielawa, NYS DEC - Division of Air Resources, 625 Broadway, 2nd Floor, Albany, New York, 12233-3251 or by e-mail to: dar.sips@dec.ny.gov .

Clean Water State Revolving Fund (CWSRF) for Water Pollution Control
Drinking Water State Revolving Fund (DWSRF)

The New York State Environmental Facilities Corporation (NYS EFC), the New York State Department of Environmental Conservation (NYS DEC) and the New York State Department of Health (NYS DOH) are pleased to announce the availability of the draft Federal Fiscal Year (FFY) 2011 Intended Use Plans (IUPs) for the Clean Water State Revolving Fund (CWSRF) and the Drinking Water State Revolving Fund (DWSRF). The CWSRF and DWSRF programs are available to municipalities and certain non-municipal entities in New York State to finance water quality related projects. NYS EFC estimates that approximately $375.0 million will be available for subsidized financing for the CWSRF during FFY 2011. This includes an estimated federal capitalization grant amount of $211.6 million, with an estimated maximum of $63.4 million to be made available for eligible projects as additional subsidization. Additionally, NYS EFC estimates that a minimum of $42.3 million will need to meet Green Project Reserve criteria. NYS DOH estimates that approximately $275.0 million in subsidized financing will be available for the DWSRF during FFY 2011. This includes an estimated federal capitalization grant amount of $89.0 million, of which a maximum of $26.7 million will be made available for eligible hardship projects as additional subsidization as hardship grants. The IUPs include lists of projects that could receive low-interest subsidized and unsubsidized financing between October 1, 2010 and September 30, 2011, the next IUP financing period. The interest rate for subsidized financings is 1/2 (CWSRF) or 1/3 (DWSRF) of the market rate for bonds. Please visit NYS EFC's website at www.nysefc.org for more information.

Eligible Projects:

CWSRF - Municipal water pollution control projects eligible for CWSRF low-interest subsidized and unsubsidized financing under Section 212 of the Clean Water Act (CWA) include, but are not limited to: wastewater treatment facilities and conveyance systems; combined sewer overflow abatement facilities; stormwater pollution abatement; energy efficiency initiatives; system security measures; water conservation, reuse and recycling systems; and other municipally-owned projects or portions of projects that maintain, protect or improve water quality.

Municipal and non-municipal entities may apply for CWSRF assistance for non-point source projects which protect water quality under CWA Section 319 or implement an approved National Estuary Plan under CWA Section 320. Projects eligible for CWSRF low-interest subsidized and unsubsidized financing include, but are not limited to: land acquisition or conservation easements for water quality protection, including wellhead protection; brownfield remediation; contaminated soil and storage tank remediation; water quality aspects of landfills such as landfill leachate collection, storage and treatment, landfill gas collection and control, and landfill capping; stormwater management facilities and equipment; wetland and waterbody restoration; highway deicing materials storage; deficient or failing decentralized septic systems; or other non-point source projects to maintain, protect or improve water quality under Section 319.

DWSRF - Drinking water systems eligible for DWSRF low-interest subsidized and non-subsidized financing are: municipal and privately-owned community water systems and non-profit, non-community water systems. Municipally-owned water systems are also eligible for low-interest unsubsidized financing. Projects eligible for DWSRF financing include: construction, rehabilitation, and upgrading of water treatment plants; transmission and distribution mains; storage facilities; pump stations; interconnections; rehabilitation or development of new drinking water sources; consolidation of water supply services; upgrades to existing water systems; energy efficiency initiatives; and capital investments to improve security of drinking water systems.

Intended Use Plans & Project Listing:

Eligible entities interested in financing one or more projects not currently listed in the draft CWSRF IUP or draft DWSRF IUP should submit the appropriate IUP project listing information before Friday, August 27, 2010 as provided below. For assistance with the IUP listing process, please call the NYS EFC or NYS DOH office listed at the end of this notice.

For CWSRF projects, an applicant will need to provide a CWSRF Project Listing Form and an approvable engineering report or technical report to NYS EFC by August 27, 2010 to be listed for financing of projects on the Annual List of the final CWSRF IUP. Separate listing forms are available for municipal wastewater and nonpoint source projects, for municipal and not-for-profit land acquisition projects, and for non-municipal nonpoint source projects.

For DWSRF projects, an applicant will need to provide a DWSRF Pre-Application Form and an engineering report or plans and specifications to the NYS DOH by August 27, 2010, or have completed construction, to be included on the Project Readiness List in the final DWSRF IUP.

A notice regarding the availability of the draft IUPs will be mailed to municipal applicants, system owners, financial advisors, consulting firms, and other interested parties. Copies of the draft IUPs will be available at New York State Documents Depository Libraries. The CWSRF IUP will also be available on the NYS EFC website at: www.nysefc.org (click on "Programs", then "Clean Water State Revolving Fund", then "Intended Use Plan"). The DWSRF IUP will also be available on the NYS DOH website at: www.health.ny.gov (click on the "Topics A to Z" button, "Drinking Water", and "Drinking Water State Revolving Fund").

Due Date For Comments:

Written statements or comments on the draft IUPs can be filed prior to the August 27, 2010 deadline or at the public hearing. If you intend to provide testimony at the public hearing, please provide a copy of the testimony prior to or at the beginning of the hearing. Written and oral statements will be made part of the official records. Written statements or comments on the draft IUPs should be filed with the following programs by close of business on the dates as indicated below:

A joint public meeting and hearing to review the draft FFY 2011 CWSRF IUP and DWSRF IUP will be held on Thursday, August 5, 2010 at 10:00 a.m. in the Stedman Room of the William K. Sanford Town Library in the Town of Colonie, Albany County. The Library is located at 629 Albany Shaker Road, approximately ¼ mile east of Exit 4 off I-87. Pre-registration is not required. Reasonable accommodations will be provided for disabled persons if requested in advance.

WEBINAR:

NYS EFC and NYS DOH will host a webinar on Wednesday, August 11, 2010, at 2:00 p.m. This event will present an overview of the 2011 IUPs for the CWSRF and the DWSRF, as well as an opportunity to answer questions. Log-on instructions for this webinar will be posted on NYS EFC's website at: www.nysefc.org.

Application Packages and Due Dates:

The CWSRF and DWSRF Financing Application Packages are available at: www.nysefc.org for applicants with projects on the 2011 CWSRF IUP Annual List and DWSRF IUP Readiness List to submit to NYS EFC for subsidized or unsubsidized financing during this IUP period (October 1, 2010 to September 30, 2011). For a copy of the CWSRF or DWSRF Application Package, please call the NYS EFC office listed at the end of this notice or refer to the EFC website.

Applications for CWSRF and DWSRF financing are accepted on a continuous basis.

For the CWSRF, the tentative FFY 2011 deadline for submittal of complete applications for subsidized financing to NYS EFC is March 1, 2011 for IUP Annual List Category A & B projects above the subsidy lines. The tentative deadline for submittal of complete applications for Category D hardship projects and potential subsidized or unsubsidized financing to EFC for IUP Annual List Category A & B projects below the subsidy lines is May 13, 2011.

For the DWSRF, the tentative FFY 2011 deadline for submittal of complete applications for subsidized financing to NYS EFC is March 1, 2011 for IUP Readiness List projects above the subsidy line. The tentative deadline for submittal of complete applications for potential subsidized or unsubsidized financing to NYS EFC for IUP Readiness List projects below the subsidy line is May 13, 2011.

NYS EFC and NYS DOH Contacts:

For a copy of the draft FFY 2011 IUP, assistance with the IUP listing process, or for information on these SRF programs, please contact:

Lead Agency: New York State Department of Environmental Conservation (NYS DEC) - Division of Water

Brief Description: This document establishes the Division of Water's (DOW) guidance on compliance and enforcement activities related to the State Pollutant Discharge Elimination System (SPDES) program. It provides DOW staff with enforcement options and operating guidelines to implement the compliance component of the program.

The goal of this guidance is to ensure consistent statewide understanding and implementation of the SPDES compliance and enforcement program in order to protect public health and the intended best use of the waters of the state. This guidance supersedes Division of Water Technical and Operational Guidance Series (1.4.2) Compliance and Enforcement of SPDES Permits, dated September 30, 1988.

Staff determined that the issuance of this guidance document is a Type II action pursuant to SEQRA.

Document Availability: The final TOGS 1.4.2 (584 kB)can be found on the NYS DEC website in PDF format at: http://www.dec.ny.gov/docs/water_pdf/togs142.pdf. Additional information on the TOGS and a responsiveness summary (PDF) (186 kB) to the comments received during the public notice period can be found on the NYS DEC website at: http://www.dec.ny.gov/chemical/62557.html.

Persons unable to access the guidance document online can contact Robin Gillespie at: (518) 402-8177 for a PDF version or a hard copy.